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2019 Supreme(Kar) 919
IN THE HIGH COURT OF KARNATAKA
K. NATARAJAN, J.
Bajaj Allianz General Insurance Co Ltd — Appellant
Versus
Vishwanatha Nayak — Respondent
Miscellaneous First Appeal No. 2825 of 2012, 2026 of 2013
Decided on : 28-06-2019
Advocate Appeared:
Gururaj Kulkarni, Adv., Vishwanatha Poojary K, Adv., Vijayakumar, Adv.
The main legal point established in the judgment is the determination of liability in a road traffic accident case under the Motor Vehicles Act, 1988, and the calculation of compensation for the legal representatives of the deceased.
Headnote:
Motor Accident Claims Tribunal - Motor Vehicles Act, 1988 - Section 166 - Summary
Fact of the Case:
The legal representatives of a deceased filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the death of the deceased in a road traffic accident. The Tribunal awarded compensation, which was challenged by the insurer and the claimants.
Finding of the Court:
The court found that the accident occurred due to the rash and negligent riding of the motorcycle by its driver, and the claimants were entitled to compensation. The court also found that the claimants were the legal representatives of the deceased and were entitled to enhanced compensation.
Issues: The issues included establishing the cause of the accident, the entitlement of the claimants to compensation, and the calculation of the compensation amount.
Ratio Decidendi: The court relied on police documents, witness testimony, and legal principles to determine the cause of the accident and the entitlement of the claimants to compensation. The court also applied the principles laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others to calculate the compensation amount.
Final Decision: The appeal filed by the insurer was dismissed, and the appeal filed by the claimants was allowed in part. The claimants were awarded enhanced compensation of Rs.4,98,400/- with interest at 6% per annum.
JUDGMENT :
K. Natarajan, J.
MFA No.2825/2012 is filed by the insurer while MFA No.2026/2013 is filed by the legal representatives of the deceased Divakara, both assailing the judgment and award dated 22.12.2011, passed by the Motor Accident Claims Tribunal, Puttur, (hereinafter referred to as 'Tribunal'), in MVC No.737/2007.
2. For the sake of convenience, the status of the parties before the Tribunal is retained.
3. Heard the arguments of learned counsel for the appellants and the respondents.
4. The legal representatives of one Divakara, who died in a road traffic accident have filed claim petition under Section 166 of the Motor Vehicles Act, 1988 ('Act' for short) claiming compensation of Rs.10,00,000/- inter alia, contending that on 16.01.2007, the said Divakara was proceeding from the Hotel Tiffin Hall towards Ramanagara by walking near Uppinangady Old Bus Stand, Gandhi Park Road on the left side of the road at 9.30 p.m., and when he reached near Gandhi Park of Uppinangady Kasaba village in Puttur Taluk, the motorcycle bearing Regn. No.KA-21/J-2297 came in a high speed on the wrong side of the road from opposite direction in a rash and negligent manner and dashed against the said Divakara, due to which, he fell down and sustained injuries. He was taken to the Government Hospital, Puttur. Later, he was shifted to Wenlock Hospital, Mangalore and got admitted as inpatient, where he succumbed to the injuries.
5. The claimants contended that due to the death of the deceased, they have lost their dependency. The deceased was working as a Cleaner-cum-Waiter in the Hotel Tiffin Hall and earning Rs.4,500/- per month. They have spent Rs.75,000/- towards medical expenses. Respondent No.1, the owner of the Motorcycle and respondent No.2, the insurer of the motorcycle were jointly and severally liable to pay the compensation. Hence, prayed for allowing the claim petition.
In pursuance of notice, respondent No.1-owner of the Motorcycle did not contest the matter and hence, he was placed ex parte.
Respondent No.2-Insurance Company appeared through its counsel and filed statement of objections inter alia, denying the mode of accident, injuries sustained by the deceased and also the age, occupation and income of the deceased as false. It is also contended that the claimants have created a story to file a claim petition in order to claim compensation. However, they admitted issuance of Insurance Policy in respect of the motorcycle and contended that if any liability is to be fastened on the Insurance Company, the same may be subject to the terms and conditions of the Insurance Policy. They have also taken a specific contention that the claim made is excessive and prayed for dismissal of the claim petition.
6. Based upon the rival pleadings, the Tribunal has framed the following issues for its consideration:
"(1) Whether the petitioner proves that the occurrence of accident in question was due to the rash and negligent riding of the Motor cycle bearing Reg.No.KA-21-J-2297 by its rider?
(2) Whether he proves that deceased succumbed to accidental injuries?
(3) Whether the petitioners are entitled for compensation? If yes, what amount and from whom?
(4) What order/Award?"
7. The claimant No.1 is the father and claimant No.2 is the mother, who died during the pendency of the claim petition. Hence, another son of the claimants, one Rohit was brought on record as petitioner No.2(a) and he has led evidence before the Court as PW.1 and also examined one PW.2, apart from marking 15 documents as per Exs.P.1 to P.15. On the other hand, one Jagadish was examined as RW.1 and the Law Officer of the Insurance Company was examined as RW.2. They also got marked four documents as per Exs.R.1 to R.4. After considering the evidence on record, the Tribunal answered issue Nos.1 to 3 in the affirmative and awarded compensation of Rs.2,40,000/- together with interest at 6%
